What is it? The premises of the HOA should include objects that are on its balance sheet, but are not in the personal possession of members of the organization. The premises shall be classified as a partnership if it:

There is a clear distinction between the property of homeowners and the property of housing associations. Residents are not liable with their property for the misuse of common property, and the premises of the HOA can be disposed of through a general meeting.

What does the organization own in the apartment building?

The management board may lease empty premises for trade and other areas or for billboards. The construction of new premises also implies the subsequent transfer of them to rent to generate income.

REFERENCE! Objects can be leased by decision of the governing bodies of the housing association only if the lease agreement being concluded does not violate the rights and interests of the apartment owners living in the house (clause 4, article 36 of the LC RF).

Article 36, paragraph 4 of the LC RF. Ownership of the common property of the owners of premises in an apartment building

The land plot on which this house is located, with landscaping and landscaping elements, other objects intended for maintenance, operation and improvement of this house and located on the specified land plot. The boundaries and size of the land plot on which the apartment building is located are determined in accordance with the requirements of land legislation and legislation on urban planning.

You can earn income from the operation of common real estate by organizing utility rooms and workshops for full-time employees who repair the property of apartment owners on a commercial basis.

How to conclude a lease agreement for common areas?

To receive additional income from the rental of common premises, you must:

1. determine the list of HOA premises that can be rented out;
2. set the future rent;
3. present a lease project at the general meeting;
4. after the approval of the project by voting, search for potential tenants;
5. negotiate with tenants and conclude agreements;
6. register the lease agreement with the Rosreestr authorities.

First of all, it is necessary to check the premises that are on the balance sheet of the housing association, their condition and documentation. It is important to make sure you have:

In the absence of the last document, it will be impossible to lease any area. If the empty property is located on the territory of the HOA, but does not belong to it, then it is necessary to register the rights to it by contacting the Rosreestr authorities with the available documents for these areas.

The documents must be accompanied by a certificate from the cadastral chamber on the boundaries of land plots adjacent to the houses of the housing association.

IMPORTANT! If, after the foundation of the partnership, a part of the premises located on its territory has features of common property, but continues to be used by third parties, the board of directors has the right to force such persons to vacate the premises or to fix a rent.

After preparing the premises, it is necessary to conduct marketing research that will help determine the average market cost of renting objects of this type and the seasonal dynamics of this cost.

To draw up a lease agreement, it is better to take a standard contract and modify it for specific circumstances. It is mandatory to specify in the contract:

At the meeting, a project of economic activity from renting out premises should be presented, listing the expected income and directions for their use (for example, to pay off debts to resource suppliers or to improve the territory).

The general meeting can either approve the amount of rent and conclude an agreement with a specific tenant or advertiser, or entrust this activity to the board, an involved manager or contractor (in the case of large housing associations with a large number of premises for rent).

REFERENCE! In most housing associations, at the general meeting, upper and lower limits on the amount of rent are adopted, within which the board sets a price for a particular tenant based on the results of negotiations.

This measure is necessary to protect the owners of common property from reckless actions of the board, without convening a meeting to sign each contract.

If the contract is concluded for a period of one year, it must be registered with the Rosreestr. To register, a board member who has concluded an agreement should contact Rosreestr with the following documents:

The contract is registered within five working days. In order not to register a lease agreement, it is necessary to conclude it for a period of 11 months or less.

For the legality of the income received, the chairman of the housing association or his accountant must annually, by the beginning of April, submit a report on the rental income received to the tax service and pay income taxes.

How is the maintenance of collective objects of use?

The performance of work on maintenance of common property is organized by the board of the partnership and can be carried out:

• by members of the HOA;
• regular employees;
• involved organizations.

Members of a housing association, if they have the appropriate qualifications, can carry out repair work in buildings on a combined basis. If the housing structure is large and includes several houses, then a staff of permanent employees (electricians, plumbers, etc.) is maintained to maintain the common property, who perform routine work as needed.

If the work is temporary or seasonal (for example, landscaping or major repairs), then an agreement is concluded with a contracting company for their implementation.

REFERENCE! Determining the amount of contributions of tenants-members of the HOA and the procedure for collecting such contributions is within the competence of the meeting of participants in the housing association and is decided by voting (part 4, clause 2, article 145 of the LC RF).

After determining the amount of mandatory contributions, accounting staff sends receipts to apartment owners by mail for payment. The payment for current repairs is part of the payment for housing (clause 1, article 154 of the Housing Code of the Russian Federation).

Payment for the maintenance and repair of common real estate is the responsibility of the owner of the dwelling, in accordance with Part 5, Clause 2, Art. 153 ZhK RF.

The obligation of the owner of the apartment to pay contributions for major repairs arises from the owner, starting from the eighth month of ownership of housing, but the authorities of the subject of the federation have the right to set an earlier payment deadline.

Conclusion

So, the premises owned by a housing association include all real estate objects that are not in the personal possession of citizens and located within the boundaries of the territory of the HOA. Such premises can be used as utility rooms for HOA staff or rented out to generate profits directed towards the maintenance of common property and utility costs, allowing to reduce the mandatory contributions of members of the housing association.

According to the Housing Code (HK RF), a homeowners association (HOA) is a non-commercial legal entity. This means that its activities cannot be aimed solely at making a profit. But, like any other non-profit organization, the HOA has the right to engage in commercial activities in order to achieve the goals set for the partnership. Is it possible for the HOA to make money and how to do it, says the lawyer.

The main purpose of the HOA is the maintenance of residential buildings. For its implementation, funds are needed. In accordance with Art. 151 of the Housing Code of the Russian Federation, the funds of the partnership are formed from contributions and payments of members of the HOA; income from business activities; subsidies and other sources.

Subsidies and payments of members of the HOA will be the topic of a separate article, today we will talk about the economic activities of the HOA. Despite the fact that, by law, non-profit organizations have the right to engage in commercial activities, Art. 152 of the Housing Code of the Russian Federation introduces restrictions for them. Paragraph 2 of this article contains a closed list of types of economic activity acceptable for HOAs. These include:

Maintenance, repair and operation of real estate in an apartment building;

Construction of additional premises and facilities in an apartment building;

Renting out part of the common property in an apartment building.

It is easy to guess that the most attractive type of economic activity mentioned is the rental of common property.

First of all, the contract

In order for the partnership to be able to lease any premises, first the general meeting of the HOA participants must determine what areas and to whom exactly the members of the partnership are ready to rent, for how long and for what rent. All other terms of the agreement, which are not of fundamental importance for members of the HOA, can be included in the agreement by a lawyer to whom the partnership will order a lease agreement. Drawing up such an agreement will cost a certain amount, but you will have to pay only once: later this agreement can be used as a model for all tenants.

If the lease is long-term, it will have to be registered. This is a troublesome and long business, so it is better to conclude lease agreements for an indefinite period or for 11 months with the right of an unlimited number of extensions. This will avoid the need to register the contract, although the actual term of its validity in the end will be much more than a year.

Also, in the HOA lease agreement, it is necessary to provide for the procedure for terminating the agreement at the initiative of the partnership. As a rule, landlords determine that the contract is terminated by them unilaterally with a notice of the tenant for a month (maximum) without explanation. This allows you not to waste time on paperwork.

Rent: important little things

Since the issue of leasing the premises is within the competence of the general meeting, the appropriate decision is made for each tenant. Otherwise, dissatisfied members of the partnership have the right to challenge the legality of the tenants in the building.

You should also seek the help of an accountant who will tell you how to correctly account for rental income and pay taxes on them. Already after the contract has been concluded, the HOA can offer its tenants services for the operation of premises, their repair, etc. Thus, the tenant will receive a certain set of services, and the partnership will legitimately earn more money for one premises.

What difficulties await partnership along the way? Firstly, it should be remembered that the legislation allows the leasing of only the common premises of the house and only by decision of the general meeting of members of the HOA. Therefore, special attention should be paid to the issues of the legality of the meeting and the correctness of registration of its decisions. If less than half of the members of the HOA are present at the meeting, it is not authorized to make any decisions. You can not rent empty apartments. They cannot be considered common property and therefore cannot be rented out.

Secondly, the partnership cannot build, for example, a parking lot for subsequent leasing: according to the law, the HOA has the right to rent out only common property located in the house, and parking does not apply to such property. At the same time, it is realistic to create such a parking lot for the needs of members of the partnership. The organization of parking requires a lot of effort. The municipality and the county prefecture must be contacted to obtain a parking lot allotment. If the site belongs to the HOA, you need to change its purpose.

As for the tenants themselves, it must be taken into account that no one will allow to place any manufacturing enterprise in a residential building. This will violate the interests of not only members of the partnership, but also residents of neighboring houses. When arranging entertainment establishments (restaurants, clubs, etc.), it is necessary to separately stipulate in the lease agreement not only the schedule of their work, but also obligations for additional equipment of the leased premises. To keep residents calm, such tenants can equip the premises with sound-absorbing panels that will not let extraneous sounds into the apartments.

Homeowners associations are not entitled to earn money by selling pies, car rentals or providing other services not provided for by law. But the opportunities that are provided to partnerships by law make it possible to extract sufficient profit to keep the house in good condition. The main thing is to properly organize the process, draw up documents and pay taxes. Then the residents will be able to afford both security at the entrance and flowers on the flights of stairs.

You can rent property from the HOA that is in common use by the members of the Partnership and other homeowners, if such use does not create obstacles in the use of the rest of the property and the organization of the activities of the HOA (part 2 of article 137 of the LC RF).

The tenant has the right to lease a land plot, non-residential premises, as well as part of the common property (for example, a wall for placing a banner). There were cases when the partnership rented out the area in the entrance for the installation of a payment terminal.

In the practice of Russian courts, there has been a tendency that any common property of a residential building can be transferred for use, with the exception of communications and property necessary for the activities of the Association of Home Owners to manage a residential building and organize the life of residents (a playground, places for collecting household waste, elevator, etc.).

How to rent premises from the Partnership?

IMPORTANT: It is impossible to conclude such a deal without the approval of the owners and members of the partnership (part 3 of article 44 of the Housing Code of the Russian Federation).

The best option is the situation when the general meeting of homeowners immediately approves the list of objects that the tenants allow to rent out and, on the basis of this protocol, the partnership concludes agreements with any tenant during the work of the non-profit organization.

In modern Russia, residents of houses rarely participate in meetings and make decisions.

In this case, the decision of the meeting of owners is the task of the future tenant.

As a rule, the tenant himself organizes the convening of a meeting or makes a door-to-door tour and asks for consent to the delivery of the property.

Rent of premises is subject to registration in Rosreestrif the period of use of real estate is less than a year. If the period does not exceed a year, then it is not necessary to register the right to lease (part 2 of article 651 of the Civil Code of the Russian Federation).

Civil Code of the Russian Federation Article 651. Form and state registration of a lease agreement for a building or structure

1. A lease agreement for a building or structure is concluded in writing by drawing up one document signed by the parties (paragraph 2 of Article 434).
   Failure to comply with the form of the lease agreement for a building or structure shall entail its invalidity.
2. A lease agreement for a building or structure concluded for a period of at least one year is subject to state registration and is considered concluded from the moment of such registration.

On behalf of the HOA, the chairman of the board, who is elected by the members of the partnership, signs the contract. To check the authority, it is enough to get an extract from the Unified State Register of Legal Entities or to demand from the chairman the minutes of the meeting at which he was elected.

If the contract is not registered, then the period of use of the property begins from the moment the parties approve the transfer act. Based on the date of signing the act, the parties determine the period of use of the object, the calculation of fees and the calculation of penalties.

Most likely, the partnership has a draft agreement, which is constantly signed with all tenants. At the same time, the law gives the tenant the right to make their own adjustments to the contract or offer their own version.

REFERENCE: This document must indicate the lease term, payment (as a rule, the monthly cost is indicated), payment term. In the contract, it is necessary to describe the subject of the transaction in as much detail as possible.

If the object is part of a room or part of a wall of a building, it is best to draw up a layout plan with exact dimensions and coordinates. Such a scheme should be noted as an annex, which must be signed by the parties.

The liability of the parties, the form and amount of liability are indicated.

Land Use Agreement

In some cases, in addition to the lease agreement, it is necessary to conclude an agreement on the use of the land plot. A land use agreement is concluded if, due to the nature of the tenant's activity, an unlimited number of persons pass to the leased property.

For example, a partnership has leased a store space and the store needs customers to be able to enter the store. The land can also be used for car parking.

If the tenant will be engaged in a licensed type of activity, then most likely the licensing department will require such an agreement.

ATTENTION: If the owner of such a plot is a partnership, then the parties will not change, and if the administration, then the contract is concluded on a general basis or an easement is established.

Nuances and pitfalls

The main pitfall in leasing from the HOA is the absence of a general meeting of homeowners or members at which the transaction was approved. The meeting may declare the transaction invalid in court if it did not approve it and such a transaction is a major one (part 6 of article 46 of the LC RF).

At the same time, the procedure for further approval may be approved in the charter of the organization. For example, if the transaction was concluded without a meeting of owners, but subsequently at the general meeting the members of the partnership approved the transaction, then such a transaction will be valid.

The charter allows the establishment of the right of the general meeting to delegate powers to the board of the HOA, if, by law, such powers do not fall within the exclusive competence of the meeting.

The right to rent non-residential premises can also be transferred to the board.

So before concluding an agreement, you should read the charter of this organization.

IMPORTANT: Another obstacle may be an illegitimate assembly. Such a meeting may be declared illegitimate if less than half of the homeowners are present.

Now housing in Russia is often rented out, and upon presentation of the protocol to the tenant, it is impossible to verify who signed under the name, the owner or tenant of the housing, or a family member. If non-owners took part in the meeting and signed the protocol, then the court recognizes such a decision as illegal (part 6 of article 46 of the LC RF).

The Housing Code of the Russian Federation, while recognizing the right of owners of premises in an apartment building to make decisions on the lease of common property, at the same time does not regulate the issue of how owners can exercise their right to receive the rent due to them from such a lease. Therefore, it seems that the owners of the premises, when making a decision at the general meeting on the lease of common property, must at the same time establish in what order they will receive the corresponding income from the lease of common property. By a decision of the general meeting of owners in an apartment building, the right of the managing organization to count the rent due to the owners against the obligations of such owners to the managing organization to pay for the maintenance and repair of housing may be established. Consider three options for formalizing relations for the lease of common property of owners. Option 1. Conclusion by the Managing Organization of a lease agreement for non-residential premises on behalf of the owners of premises in an apartment building Characteristics of Option 1 Building contractual relations for the lease of non-residential premises according to Option 1 involves holding a general meeting of owners of premises in an apartment building, at which a decision should be made on the conclusion by all owners lease agreements with the tenant. The issue on the agenda of such a meeting should be formulated approximately as follows: "The managing organization to enter into contractual relations for the lease of the basement on behalf of all owners of premises in an apartment building." In addition, at the same meeting, the terms of the lease agreement should be approved, including those regulating the procedure for the movement of rent due to owners. The terms of the lease agreement approved at the general meeting must contain the following provisions. 1) Conditions establishing the plurality of persons on the side of the lessor. Since the lease agreement is concluded by all owners, a plurality of persons should arise on the side of the landlord. The terms of the lease agreement must state that the managing organization entered into the lease agreement on behalf of all owners. Because of this, all the rights and obligations of the lessor under such an agreement are acquired by the owners, and not by the managing organization. Therefore, it is also necessary to specify in the lease agreement a list of owners on whose behalf the managing organization acts. 2) Information on the share of each owner in the right of common ownership of common property (including the share owned by the municipality). In accordance with paragraph 1 of Art. 37 of the Housing Code of the Russian Federation: "The share in the right of common ownership of common property in an apartment building of the owner of the premises in this house is proportional to the size of the total area of ​​\u200b\u200bthe said premises." The amount of income of the owner of premises in an apartment building from the lease of common property must be calculated on the basis of his share in the common ownership of the common property. Therefore, the lease agreement must specify the share of each of the owners. 3) Conditions that allow the managing organization to receive rent from the tenant and credit such rent due to the owners against the obligations of the owners to the managing organization. In accordance with paragraph 1 of Art. 313 of the Civil Code of the Russian Federation: "The performance of an obligation may be assigned by the debtor to a third party, unless the obligation of the debtor to perform the obligation personally follows from the law, other legal acts, the terms of the obligation or its essence. In this case, the creditor is obliged to accept the performance offered for the debtor by a third party" . In this case, the debtor who imposes the fulfillment of his obligation on a third party will be the owner of the premises, and the third party, that is, the person who is charged with the obligation to fulfill the obligation of the owner, will be the tenant. Thus, in order for the managing organization to have the right to accept into its current account the rent due to the owners (with the exception of KUMI), and to take it into account as a payment from the owners of the managing organization for the maintenance and repair of housing, it is necessary to provide in the lease agreement that the tenant in exchange for the right to use the basement pays a fee due under the lease agreement to the owner, directly to the managing organization to pay off the owner's obligation to the managing organization to pay for the maintenance and repair of the dwelling. It should be noted that holding a general meeting in the situation under consideration is necessary due to the imperative requirement of the Housing Code of the Russian Federation, according to which decisions on the use of common property are assigned to the exclusive competence of the general meeting of owners of premises in an apartment building. At the same time, according to paragraph 1 of Art. 46 of the Housing Code of the Russian Federation, decisions on the transfer of common property for use are made by a general meeting of owners of premises in an apartment building by a majority of at least two-thirds of the votes of the total number of votes of such owners. When making a decision to transfer the common property in an apartment building for use, the owners of the premises must be warned about the occurrence of the corresponding income from the due amount of the corresponding income to each owner of the tax on personal income and agree on the procedure for its payment. Option 2. Conclusion by the Managing Organization of a lease agreement for non-residential premises with the owners of premises in an apartment building and transfer of non-residential premises for sublease Characteristics of Option 2 Building contractual relations for the lease of non-residential premises according to Option 2 involves holding a general meeting of owners of premises in an apartment building with a decision to conclude an agreement lease by owners directly with the MA. The MA, in turn, will transfer these non-residential premises to organizations (individual entrepreneurs) under sublease agreements, the payment for which will go directly to the MA. The terms of the lease agreement, approved by the general meeting, should provide that the owners' obligations to the MA to pay for the maintenance and repair of the premises will be partially (or completely) repaid by offsetting a counter homogeneous requirement for paying rent that the owners have to the MA (Article 410 of the Civil Code RF). At the same time, the lease agreement must contain conditions allowing the MA to sublease the leased non-residential premises. In the considered Option 2, in contrast to Option 1, the MA acts as a tax agent for personal income tax, obliged to calculate, withhold from the income of citizens-owners of premises in an apartment building and transfer the withheld amounts to the budget, if this is established by the lease agreement with the Owners. Option 3. Conclusion of a lease agreement for non-residential premises by a homeowners association established in an apartment building Characteristics of Option 3 Option 3 involves the creation of a homeowners association in an apartment building, which will act as a lessor of non-residential premises in relations with organizations (individual entrepreneurs) - tenants. Income from the rental of non-residential premises will go to a special HOA Fund (for example, the Fund for seasonal work), the funds of which will be used to pay for the relevant work performed by the MA under an agreement with the HOA. The advantage of this Option is that the rent goes to the income of the HOA, and not the owners of the premises in the apartment building, so there is no personal income tax. Consequently, the MA, as well as other organizations (individual entrepreneurs) participating in relations for the lease of non-residential premises in an apartment building, have no obligation to act as a tax agent for personal income tax. About HOA Funds 2 tbsp. 152 LCD RF). In accordance with paragraphs. 7 p. 2 art. 145 of the Housing Code of the Russian Federation, the competence of the general meeting of members of the HOA includes determining the directions for the use of income from the economic activities of the Partnership. According to paragraph 3 of Art. 151 of the Housing Code of the Russian Federation: "Based on the decision of the general meeting of members of the partnership of homeowners, special funds may be formed in the partnership, spent for the purposes provided for by the charter. The procedure for the formation of special funds is determined by the general meeting of members of the partnership." It follows from the above norms of the Housing Code of the Russian Federation that homeowners' associations have the right to make decisions on the procedure for using income from the economic activities of the Partnership not only by planning direct items of expenditure, but also by forming special funds, the number and types of which are not limited by the Housing Code. The basis for the creation of the Fund is the decision to establish the Fund, adopted by the general meeting of members of the HOA. HOA funds represent HOA funds that can be spent on the goals and objectives of the partnership, for example, on the restoration and repair of common property in an apartment building, providing emergency repairs, covering unforeseen expenses, building or reorganizing objects of common property of owners of premises in an apartment building etc. The main purpose of creating funds is the accumulation of funds to pay for certain types of expenses of the HOA. The procedure for the formation and use of the funds of the HOA funds should be determined by special provisions on the HOA funds approved by the general meeting of its members.

Moscow authorities will attract informants to identify tax evaders on income from rental housing

The Moscow government recently announced a real crusade against Muscovites who secretly rent apartments and do not pay taxes from the authorities. Methods for identifying such unscrupulous landlords will be applied almost espionage

The chairmen of the capital's HOAs have already received "letters of happiness" from the mayor's office, in which they are asked in the most natural way to become informants in the case of catching persistent tax evaders. The wording, however, is the most gracious: “Please carry out work to identify citizens living in residential premises without a lease agreement, and also inform the owners that renting out housing is taxed.”

“We are invited to report on people who rent an apartment with a contract, without a contract, and about people who simply live without any rights,” Valentin Grigoriev, chairman of the Moscow Union of Housing and Housing Cooperatives and HOAs, shared with Izvestia.

In turn, the head of the department of economic policy and development of Moscow, Maxim Reshetnikov, said that by the end of the year the city authorities intend to "debug the mechanisms", and from 2013 all taxes due to the city will be collected from landlords. Moreover, if it turns out that the apartment has been rented out for more than a year (and this will turn out in every first case), you will have to pay a fine for each year.

“For the second half of the year, we will collect all the information - where and who rents an apartment. We hope that citizens will understand that all information about them is in the tax office and will want to pay taxes, and not communicate with the tax authorities,” Reshetnikov said.

However, the authorities do not intend to rely only on the HOA, which usually does not care about the residents, if the money would come in regularly, the authorities do not intend to. Local police officers and, of course, housemates who know exactly who rents an apartment to whom will also act as keen eyes and sensitive ears of the Moscow administration. At the same time, Reshetnikov immediately made a reservation that no one would pay informants. This means that citizens will have to “knock” on their neighbors, as the Owl from the cartoon about “Winnie the Pooh” used to say, free of charge.

Maxim Reshetnikov also said that the authorities hope for the consciousness of the "gray" landlords who rent apartments in 2012. True, there is no benefit for them from coming out of the shadows. No amnesty, no encouragement for honesty - sheer losses. And if it turns out that the apartment was rented in 2011, then write wasted.

“If the facts of renting out apartments in 2011 are confirmed, citizens will have to talk to tax inspectors. If they did not file a declaration for 2011, they will have to explain why. Sanctions are provided for non-payment of taxes,” Reshetnikov scared the persistent non-payers.

Whether “chain letters” and free informants will help is not yet clear. According to Valentin Grigoriev, the request to identify landlords not only

difficult, but also against the law.

“I do not have the right to disclose the personal data of citizens and disclose them without the permission of the one who rents the apartment. There is a tax secret. Article 102 of the Tax Code says that information about the activities of organizations and individuals cannot be disclosed,” he said.

The same opinion is shared by professional lawyers. So, for example, Roman Sorokin, a lawyer for the Moscow Bar Association Alexander Ekim and Partners, told Izvestia that he did not see a legal mechanism for checking private housing.

“An apartment is a private property, it is inviolable, like private life. You can’t come and say: show me who lives here,” he said.

This is probably why the authorities intend to involve district commissioners in such inspections, who, on duty, have the right to visit citizens' homes.

What awaits the "gray" landlords caught by the hand? According to the Tax Code of the Russian Federation, a fine for non-payment of taxes on profits from renting an apartment in previous years is charged for a maximum of three years. If the homeowner "forgot" to submit an income declaration to the tax office, he will have to pay a fine in the amount of 5 thousand rubles.

If the fact is revealed that the owner had to pay rent tax in 2010-2011, but decided not to, he will be fined for each day of delay. But for non-payment of taxes, you can get a real term. True, only if the amount of debt exceeds 100 thousand rubles for one calendar year.

However, according to Roman Sorokin, these sanctions have never been widely used before. The managing director of Miel-Arenda, Natalya Sivko, also could not recall precedents when landlords would be fined for tax evasion for renting real estate.

Apparently, the authorities are determined to seriously crack down on hard-core tax evaders who profit from renting out housing. However, previous initiatives in this field have not been successful. Even when the Federal Migration Service submitted to the tax authorities the addresses where illegal migrants lived in rented apartments, no sanctions against homeowners followed.

See how it ends this time.